NLRB: You can’t require employees to be positive or professional
Monday, May 19, 2014
"That email I just sent to my mom via my company account wasn't personal, it was union business — so back off."
Employers have long operated on the idea that when an employee uses the company email, it will only be for business purposes. That may be coming to an end if the National Labor Relations Board (NLRB) has its way.
The NLRB is broadly interpreting the National Labor Relations Act to say that employees can take part in concerted activities for the purpose of collective bargaining, mutual aid or protection. But their interpretation of it is pushing the edges of sanity.
Complaining anywhere and everywhere about anything could equal protected activity
In the NLRB's eyes, employers are barred from taking any action that could by any stretch of the imagination be seen as restricting employees' ability to improve their work environments. Such activities have included complaining on their Facebook pages about their managers, working conditions, wages, store conditions, cleanliness of bathrooms and each other.
Social media discussions concerning an employer are now seen by the NLRB as organizing activity. So yes, my 500-word letter to my mom describing the broken vending machine and how everyone is mad about it is protected organizing activity.
The fact I'm using company time to write this email is seen as no actionable concern or disadvantage to the employer.
The slipperiest slope of all
The NLRB is traveling down not just the proverbial slippery slope, it is dancing a jig on an icy glacier. If employees can disparage their employers online and use the company email under the guise of organizing activity, what's next? Can they spend half their day on the telephone talking to friends about what a miserable place it is to work?
Apparently so. The NLRB recently ruled in "Hill and Dales General Hospital" that requiring employees to represent the company in a "positive and professional manner" and avoid negative comments violates Section 7 of the National Labor Relations Act.
That office gossip could be a union organizer
The hospital, a nonunion employer, had created for all staff a "Values and Standards of Behavior Policy" that prohibits "negativity or gossip," including negative comments about co-workers. It included the dictate that employees will "represent [their employer] in the community in a positive and professional manner."
An employee charged that such language infringed on employees' rights under the Act to engage in protected activity for their "mutual aid or protection."
In the initial hearing, an administrative law judge ruled that the provisions prohibiting "negative comments" and "negativity or gossip" were unlawful, but didn't object to the language regarding the "positive and professional manner."
However, on appeal, while the NLRB agreed with the judge's ruling on the negativity-related provisions, it found the language requiring "positive and professional" conduct to be "overbroad and ambiguous" and hence unlawful. "In the community" could be seen as prohibiting any type of public activity, protest or public statement that might reflect negatively on the employer.
My thought is, if I can use a company email for personal business so long as I put in magic words like "union" or "hate my boss," then why can't I use the telephone to call cousin Luigi in Sicily for advice on organizing my fellow workers?
Yes, it's a slippery slope — anyone got a sled?
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